Patterico's Pontifications

7/26/2005

Bogus Document Controversy Begins

Filed under: Dog Trainer,Judiciary — Patterico @ 6:10 pm



The L.A. Times has published on its web site a story about the White House’s refusal to release privileged documents relating to John Roberts’s time as a Deputy U.S. Solicitor General. The article sets the tone with this paragraph:

The White House today released thousands of pages of documents on Supreme Court nominee John G. Roberts Jr. that nobody on Capitol Hill requested, but declared off limits all materials from the period in Roberts’s government career that would likely be the most revealing about his political views.

The story outrageously portrays this bogus document issue as genuine, by completely ignoring the massive weight of evidence to the contrary. For example, the editors allow this statement by Sen. Ted Kennedy to go completely unchallenged in the article:

“In my 42 years on the Judiciary Committee, we have received many internal Justice Department documents at least as sensitive as these, even for confirmation proceedings that don’t come close to the importance of a Supreme Court appointment,” said Sen. Edward Kennedy (D-Mass.). “There is no privilege, there is no rule, there is no logic that would bar us from getting these documents.”

Disingenuous doesn’t even begin to describe this.

Let’s start with the portion of Kennedy’s statement that holds that there is “no privilege” that would bar the Senate from obtaining memos by a Deputy Solicitor General. Recently, my friend William Dyer concisely demolished an identical claim by Sen. Pat Leahy as “a preposterous and incorrect statement of the law.” Mr. Dyer has the case citations to back up his statement. Mr. Dyer’s total refutation of Leahy’s comment is a conclusive rebuttal to Sen. Kennedy’s identical claim that there is “no privilege” or “rule” that bars the release of internal memos to the Solicitor General.

Equally ridiculous is Sen. Kennedy’s claim that there is “no logic” to the claim that such memos should remain confidential. The reasons to keep such memos confidential were set forth in a February 12, 2003 letter from Alberto Gonzales to Senators Daschle (remember him?) and Leahy, regarding the nomination of Miguel Estrada to the D.C. Circuit Court of Appeals. (To read the letter, go here and scroll down, or search for “February 12, 2003″ — the letter is fairly far down the page.) Gonzales’s letter explained:

You have renewed your request for Solicitor General memos authored by Mr. Estrada. But every living former Solicitor General signed a joint letter to the Senate opposing your request. The letter was signed by Democrats Archibald Cox, Walter Dellinger, Drew Days, and Seth Waxman. They stated: “Any attempt to intrude into the Office’s highly privileged deliberations would come at the cost of the Solicitor General’s ability to defend vigorously the United States’ litigation interests — a cost that also would be borne by Congress itself. . . . Although we profoundly respect the Senate’s duty to evaluate Mr. Estrada’s fitness for the federal judiciary, we do not think that the confidentiality and integrity of internal deliberations should be sacrificed in the process.

Gonzales made it clear that a wholesale disclosure of internal Justice Department memoranda would be wholly unprecedented:

The history of Senate confirmations of nominees who had previously worked in the Department of Justice makes clear that an unfair double standard is being applied to Miguel Estrada’s nomination. Since the beginning of the Carter Administration in 1977, the Senate has approved 67 United States Court of Appeals nominees who previously had worked in the Department of Justice. Of those 67 nominees, 38 had no prior judicial experience, like Miguel Estrada. The Department of Justice’s review of those nomination records disclosed that in none of those cases did the Department of Justice produce internal deliberative materials created by the Department. In fact, the Department’s review disclosed that the Senate did not even request such materials for a single one of these 67 nominees.

Of this group of 67 nominees, seven were nominees who had worked as a Deputy Solicitor General or Assistant to the Solicitor General. These seven nominees, nominated by Presidents of each party and confirmed by Senates controlled by each party, included Samuel Alito, Danny Boggs, William Bryson, Frank Easterbrook, Daniel Friedman, Richard Posner, and Raymond Randolph.

Today’s L.A. Times story suggests that a different precedent was set during the confirmation hearings for Robert Bork:

Democrats noted that the Reagan administration provided a number of internal Justice Department documents during nomination proceedings for Robert Bork in 1987, including material from the time he served in the solicitor general’s office.

But Gonzales’s letter regarding Estrada addressed — and convincingly rejected — that exact argument:

The five isolated historical examples you have cited do not support your current request. In each of those five cases, the Committee made a targeted request for specific information primarily related to allegations of misconduct or malfeasance identified by the Committee. Even in those isolated cases, the vast majority of deliberative memoranda written by those nominees were neither requested nor produced. With respect to Judge Bork’s nomination, for example, the Committee received access to certain particular memoranda (many related to Judge Bork’s involvement in Watergate-related issues). The vast majority of memoranda authored by Judge Bork were never received.

None of this information is included in the article. Readers are left with the impression that Democrats are asking for nothing more today than was already provided in the confirmation hearings for Judge Bork. As Gonzales’s letter makes clear, this impression is misleading in the extreme.

With respect to Miguel Estrada, Gonzales suggested numerous alternatives to reviewing confidential internal memoranda, such as: reviewing written briefs and oral arguments; interviewing Estrada’s former supervisors; interviewing those who served alongside Estrada; and examining Estrada’s written performance reviews.

As far as I know, similar avenues are available to Senators who wish to examine John Roberts’s record.

Not that the L.A. Times mentions that, either.

I am assuming that today’s L.A. Times story on this issue is just a hasty first draft. Surely the version that runs in tomorrow’s paper will present some of the arguments I just went through.

Am I being too naive?

I guess we’ll see.

UPDATE: Mr. Dyer has more here on the documents issue generally. He is proving to be a valuable voice in this confirmation fight, as he was in the 2004 presidential election. It’s good to see him actively blogging again.

UPDATE x2: See the UPDATE to this post for a surprising about-face by Walter Dellinger, and a refutation of his arguments.

11 Responses to “Bogus Document Controversy Begins”

  1. “Let’s start with the portion of Kennedy’s statement that holds that there is “no privilege” that would bar the Senate from obtaining memos by a Deputy Solicitor General”

    The white house can waive the privilege right?

    actus (a5f574)

  2. […] Patterico and Beldar have some interesting thoughts about whether or not an attorney-client privilege really exists for documents from the Solicitor General’s Office (they say “yes”). Also, a few years ago, the seven then-living former Solicitors General wrote this letter regarding document requests. Keep in mind, by the way, that presidents going back to George Washington have been refusing document requests not just from Senate minorities, but from Senate majorities. No responses to ‘White House Protects SG Documents’. RSS feed for comments and Trackback URI for ‘White House Protects SG Documents’. […]

    Confirm Them » White House Protects SG Documents (e203ab)

  3. Patterico:

    I just posted this question on Beldar, but maybe some of the lawyers here could help me out; I don’t really understand these things.

    What conceivable interest could these privileged documents hold, even for Democrats in the Senate? Even if they could somehow get hold of them, what on earth do they expect to find there? Some staggering smoking gun that will allow them to defeat him?

    Like what — do they think he’s going to write villainous asides in the margins about wanting to take the vote away from women and put Jews in concentration camps? Do they imagine he confessed to some crime in the notes he sent up the chain to his boss, Ken Starr?

    Or do they think they’ll catch Ken Starr plotting to destroy Bill Clinton, should he ever become president, by tricking Janet Reno (should she ever become Attorney General) into appointing him independent counsel in the Whitewater case, should that ever become a scandal?

    Am I missing something here? Aren’t the actual papers that were filed in the cases Roberts handled publicly available? Why can’t they get whatever information they need about his “thinking” from those?

    I’m completely befuddled. What is the point? Even if they got them, what would they do with them?

    Dafydd

    Dafydd (f8a7be)

  4. Dafydd:
    Good question. I agree, there is not likely to be any useful information in the documents. The Democrats are requesting the documents because they know that the President will not turn them over. Then they have an excuse to oppose the nomination.

    Paul (784b58)

  5. “Am I missing something here? Aren’t the actual papers that were filed in the cases Roberts handled publicly available? Why can’t they get whatever information they need about his “thinking” from those?”

    The idea is basically that the papers he filed represent the views of the client that the lawyer has chosen to represent. Whereas the papers not filed might contain less of the client’s view and more of the lawyer’s view, and thus would be more indicative of the judicial philosophy of an otherwise not very known candidate.

    actus (a5f574)

  6. All the Democrats do anymore is make outrageous demands. And they know the press won’t call them on it. Ted Kennedy has to know that what he said was a perposterous lie, yet he didn’t fear exposure.

    Bostonian (326071)

  7. Actus:

    Whereas the papers not filed might contain less of the client’s view and more of the lawyer’s view, and thus would be more indicative of the judicial philosophy of an otherwise not very known candidate.

    I don’t understand. Wouldn’t the client (the White House) either (1) be asking “what is the law on this question,” or (2) be telling Roberts “here is what we want to do; craft the best argument you can for us to do it?”

    I mean, if I go to an attorney to sue a publisher for breach of contract (I never have, but let’s say I did), would any draft of the complaint tell us what the lawyer thought about, say, copyright laws vs. access rights to a literary work?

    I mean, I would sure hope my attorney would simply come up with the best case he could for my side of the complaint, rather than lecture me on what the proper balance should be in a free society. Wouldn’t that be true of the Deputy Solicitor General, too?

    Dafydd

    Dafydd (f8a7be)

  8. “I mean, I would sure hope my attorney would simply come up with the best case he could for my side of the complaint, rather than lecture me on what the proper balance should be in a free society.”

    I would imagine that would be his final answer — ie, the documents that are signed, but I would also imagine a lawyer would also have a “counselor” type role.

    Also, some legal issues may not yet be resolved — the type a supreme court justice might see — and thus there really isn’t really an answer to the question of “what is the law on this question,” other than to come up with arguments. Its those arguments that are of interest.

    actus (cd484e)

  9. As a lawyer, I have often times had to tell clients that what they wanted to do was not likely to succeed, a bad idea, etc. Actus is right, a big part of a lawyer’s job is as “counselor.” Unfortunately, Dafydd, the law rarely has “answers” – just “likely outcomes.” Anything decided by a third party(s), judges or jurors, is impossible to predict.

    So back to the main point, why are communications between a government lawyer and his “client” (some particular government agency) privileged? Why is it a good idea to keep those communications secret? For exactly the reasons set forth by the former solicitors general in Gonzales’ letter to Daschle and Leahy – if those documents could be revealed to the public, a fully candid discussion of the facts and law would not take place. Everyone would couch their advice and statements based on the assumption that the lawyer will be a potential judge nominee someday and everything they say will be made public. Clients withhold bad facts. Lawyers withhold advice on all possible scenarios. Lawyers craft their advice not for the client, but for their own future public relations. This is bad, we have decided. The LA Times apparently does not care about these values.

    Ben Pugh (1527b3)

  10. […] I already linked Beldar’s post on this, but perhaps it’s worth quoting his case law: Courts, commentators, and government lawyers have long recognized a government attorney-client privilege in several contexts. . . Although the attorney-client privilege traditionally has been recognized in the context of private attorney-client relationships, the privilege also functions to protect communications between government attorneys and client agencies or departments, as evidenced by its inclusion in the [Freedom of Information Act], much as it operates to protect attorney-client communications in the private sector. […]

    Patterico’s Pontifications » More One-Sided Coverage of the Documents Non-Issue (421107)


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